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A Libertarian Rawls?

“Rawls provided a comprehensive philosophical system that justified the main preoccupations of the center-left, which dominates academic life, and put classical liberals and conservatives at a disadvantage. Indeed, Rawls’s doctrine of “public reason” would prevent conservatives from bringing many of their most distinctive concerns into public discourse at all. Nevertheless, since his death in 2002, a few libertarians have sought to appropriate Rawls for their own purposes.”

If this is Gordon’s thesis, then I don’t think he does a very good job of arguing for it in the rest of the article. However, Gordon does provide a pretty good summary of the major arguments of A Theory of Justice in the article, without presenting, at least I don’t think, any major mischaracterization of the basic theory.

My first major gripe with Gordon is his arguments about the difference principle. He criticizes Rawls for making the difference principle a collective one, as opposed to an individualistic one:

“Rawls’s extreme views about merit have exposed him to withering criticism, and Nozick was in the forefront here. First, if you don’t deserve your talents or personality traits, what is left? Rawls has evacuated persons of their attributes, leaving virtually nothing behind. Further, suppose Rawls is right that people do not deserve their superior abilities—that is, they do not acquire these talents by superior moral merit. It does not follow that they are not entitled to benefit from them. Why does the fact that you do not “deserve,” in Rawls’s sense, your superior talents imply that they ought to be transferred to society to be managed for the benefit of the least well off? Rawls, though ostensibly devoted to liberty, winds up with a system in which society controls virtually all the important human attributes. “

Here I think Gordon does not take the veil of ignorance on its own terms: after all, the original position is a hypothetical device, and it is rational for people who do not know anything about themselves to choose distribution in a way that makes the least well off better than they were before. After all, anyone could be part of the least well-off, so a distribution that makes the least well-off benefits everyone equally from a statistical point of view. The original position is a gambling position: yes, the individual might choose to gamble that he is part of the elite with skills that would enable him to earn much more than others, but he also takes the risk that he will be the victim of a massively unequal distribution. In the absence of information, it is rational for the individual to make the least well-off better, because that guarantees a better minimal level of welfare. Therefore, there is no sense in which society controls and redistributes individual talent, as Gordon claims, because the rational individual consents to a higher welfare floor rather than a higher welfare ceiling.

My second gripe with Gordon is his characterization of Rawls’ concept of “public reason.” Gordon writes:

“Even with that concession, Rawls’s idea of public reason has little to recommend it. Rawls has simply defined a notion of social stability to suit his theory. He never shows that something bad will happen if a society is not “stable” in his sense. Why cannot a society like our own, with considerable religious and philosophical disagreement, continue to flourish without the crutch of public reason? Unless one defines a society so that it must include common adherence to a political doctrine, it is not clear why social order demands agreement. Would not coercive efforts to enforce such a political orthodoxy on people with strong religious beliefs be likely to reduce social stability rather than promote it? This is the clear lesson of modern French history, from the Jacobins to the religious conflicts of the French Third Republic. “

Again, I think Gordon mischaracterizes the idea of public reason: for Rawls, appeals to public reason is a method for solving political disputes; it does not represent any kind of coercive attempt to impose orthodoxy. The idea of public reason is that individuals with differing comprehensive world-views and philosophies should only appeal to things which are shared by other individuals with differing world-views and philosophies. This is the idea of a overlapping consensus: imagine the world-views and philosophies of different individuals as circles who intersect with each other; their intersection is what constitutes public reason, i.e., those parts of their philosophies that all commonly acknowledge as legitimate.

Therefore, the idea of public reason is not coercive; it merely establishes a criteria for persuasive legitimacy. There is nothing in the idea of public reason that rules out particular or substantive claims of various religion and creeds, so long as everyone acknowledges them. So theoretically, in a nation in which everyone subscribed to, say, Christian moral doctrines, public reason in that nation will not exclude those doctrines. But in a nation, like America, in which diverse philosophies and comprehensive world-views conflict with each other, an appeal to purely sectarian concepts and arguments will not be legitimate because not everyone will acknowledge them. So for example, Catholics may surely argue, in the public arena, that abortion ought to be outlawed, but not on the grounds that God said so, since not everyone acknowledges God or divine revelation as a legitimate source of ethical imperatives; rather, a Catholic can appeal to a non-Catholic on the grounds that since a fetus is a human being, and since killing a human being is wrong, ergo abortion is wrong. The second appeal differs from the first because it is made on grounds common to both Catholics and non-Catholics alike, and even if a non-Catholic does not agree, he disagrees not on sectarian grounds.

As to Gordon’s question about what the undesirable effects of not using public reason are, I think the current state of political discourse in this country amply answers the question. If people do not agree to argue on common ground, then there is in fact no rational argument taking place. Take the abortion debate: if a Catholic squarely and consistently insists that abortion is wrong because God said so (thus making an argument from divine revelation), and if an atheist argues that abortion is permissible on ethical grounds, then there is no argument between the two, because they are not arguing on the same level. Either the Catholic or the atheist has to give up his sectarian point of view and argue on equal terms as the other, or else the entire argument is dead to begin with. Now, Gordon could have said that it’s unfair for the atheist to demand that the Catholic gives up his sectarian doctrine, and there might be something to be said about that, but unfortunately Gordon doesn’t raise this point.

So what do we have? Shouting matches essentially, in which the participants refuse to even acknowledge some common grounds from which to advance the argument. In other words: shit we see on every cable news network and op-ed pages.

Now Gordon might have raised a pertinent point here by arguing that appeals to public reason don’t necessarily produce an objectively correct moral conclusion, but again, he doesn’t. He might have made the argument that conclusions reached from public reasoning might be characterized by unanimity, but unanimity itself does not guarantee moral correctness. Again, there is something to be said about this, but Gordon does not explore it.